Opinion
Argued October 28, 1975
November 25, 1975.
Schools — Appeals — Preliminary objections — Interlocutory orders — Jurisdictional challenge — Act of 1925, March 5, P.L. 23 — Standing to sue — Removal of school directors — Public School Code of 1949, Act 1949, March 10, P.L. 30 — Words and phrases — Resident taxpayers — Taxable property — Due process — Equal protection — Constitution of the United States, Fourteenth Amendment — Constitution of Pennsylvania, Article I, Section 4.
1. Action of a court of common pleas, dismissing preliminary objections raising a question of the jurisdiction of the court, is appealable under the Act of 1925, March 5, P. L. 23. [96]
2. Preliminary objections directed to a complaint and asserting that plaintiffs in the action had no standing to bring the action under the Public School Code of 1949, Act 1949, March 10, P.L. 30, because they were not residents owning taxable real estate do not challenge the jurisdiction of the court over the subject matter of the litigation, and an order dismissing such objections is interlocutory and unappealable. [96]
3. Resident taxpayers of a school district are authorized by the Public School Code of 1949, Act 1949, March 10, P.L. 30, to petition for the removal of school directors although the taxpayers own no taxable real estate. [97]
4. To deny taxpayers of a school district who own no taxable real estate the right to petition for the removal of school directors when such right is given to taxpayers owning such property would be unreasonable and violative of the due process and equal protection guarantees of the Fourteenth Amendment to the Constitution of the United States and of Article I, Section 4 of the Constitution of Pennsylvania. [97]
Argued October 28, 1975, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 47 C.D. 1975, from the Order of the Court of Common Pleas of Allegheny County in case of Raymond DiPerna, Marjorie DiPerna, Alberta Sutey, Patricia McMahon, Rose Boyd, Anthony C. Kovalovsky, Rita C. McNally, Anne Przybylski, Ella Oliver, Suzanne L. Riser, Patricia Crew, Jane Hawkins v. Ronald Dzadony, in his capacity as member and president of the Sto-Rox School Board, Rocco Mollica, Michael Angelo, Ferdinand A. Tarquinio, Thomas Connolly, Jack Burik, in their capacity as members of the Sto-Rox School Board, No. 2183 October Term, 1974.
Petition in the Court of Common Pleas of Allegheny County for removal of school directors. Respondents filed preliminary objections. Objections dismissed. HESTER, J. Respondents appealed to the Commonwealth Court of Pennsylvania. Appellees filed motion to quash appeal. Held: Appeal quashed.
Alfred C. Maiello, for appellants.
Raymond M. Larizza, for appellees.
Section 318 of The Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P. S. § 3-318, authorizes any ten resident taxpayers of the school district to petition for an order removing directors in circumstances there described. The instant appellees filed such a petition. The appellants, members of the school board, filed preliminary objections, including one disputing the lower court's jurisdiction of the petition on the ground that some of the appellees did not own real property within the school district. The lower court rejected the appellants' contention that the phrase "resident taxpayers" means residents who own taxable real estate and dismissed the objection.
The appellees have filed a motion to quash this appeal on the ground that the lower court's order is interlocutory. The appellants respond that their preliminary objections raised a question of the lower court's jurisdiction, the dismissal of which is appealable by the Act of March 5, 1925, P.L. 23, 12 Pa.C.S.A. § 672. We agree with the appellees that the appellants' preliminary objection alleging the court's lack of jurisdiction was really an attack on the standing of some of them to be petitioners. Such an attack, of course, does not go to the court's jurisdiction over the subject matter, which in this case is specifically conferred by statute. Zerbe Township School District v. Thomas, 353 Pa. 162, 44 A.2d 566 (1945). While we must quash the appeal on this ground, we will nevertheless express our agreement with the lower court that the appellants' objection to some of the appellees' standing has no merit.
The appellants' only authorities for their contention that the phrase "resident taxpayers" means resident owners of real property is that of two 1937 Pennsylvania Common Pleas Court decisions and a 1940 Oklahoma case. The Pennsylvania decisions antedated both The Public School Code of 1949 and The Local Tax Enabling Act, Act of June 25, 1947, P.L. 1145, as amended, 53 P. S. § 6901 et seq. The latter enactment delegated to school districts and other municipal subdivisions the power to tax a variety of subjects other than real estate, including wages, salaries, commissions and other earned income of individuals. It is probable that there are persons in every subdivision in Pennsylvania who, although owning no real estate, pay local taxes pursuant to resolutions enacted under The Local Tax Enabling Act in amounts in excess of those paid by some property owners. As Judge HESTER for the lower court correctly observed, a construction of the cited provision which would accord property owners the right to seek the removal of school directors but deny the same right to other taxpayers would be without foundation in reason and probably violative of the constitutional guarantees of due process and equal protection provided by the Fourteenth Amendment of the United States Constitution and Article 1, Section 4 of the Pennsylvania Constitution.
Appeal quashed.